Warfield v. Warfield, 94-2971
| Decision Date | 18 October 1995 |
| Docket Number | No. 94-2971,94-2971 |
| Citation | 661 So.2d 924 |
| Parties | 20 Fla. L. Weekly D2340 Tina Reid Holman WARFIELD, Appellant, v. Edward S. WARFIELD, III, Appellee. |
| Court | Florida District Court of Appeals |
David M. Shenkman of David M. Shenkman, P.A., Miami, for appellant.
Mary E. Scoville of Law Offices of Mary E. Scoville, Miami, for appellee.
In this appeal, the former wife contends that the trial court did not have jurisdiction to determine the issue of child custody. Because the wife agreed in the separation agreement to the husband acquiring primary custody of the minor child at the time the child entered school, we hold that the trial court had jurisdiction under the Uniform Child Custody Jurisdiction Act, section 61.1308(1)(b), Florida Statutes, and affirm as to all issues but one. We reverse the judgment only insofar as it restores to the wife her maiden name where no pleading or paper signed by the wife requesting that relief was presented to the trial court.
The parties were married in New York in 1985. In 1989 a son was born to the couple, who then resided in Virginia. Both parties and their child are United States citizens. Just a year later the parties separated and executed a property settlement agreement covering all issues of the marriage and the custody of the parties' child. By its terms, the child was to reside initially with the wife in Cozumel, Mexico. The husband would have visitation with the child for two months each summer. The parties agreed that at the beginning of the school year in 1994, the child would commence residing with the husband and would attend school in the jurisdiction in which the husband then resided. The agreement also contained a provision consenting to the incorporation of its terms in any final judgment of divorce. It appears from the meager record that the parties complied with the agreement. The child resided with the wife in Mexico, and the husband exercised his visitation regularly. The husband moved to Florida sometime in 1992 or 1993, and the child visited with his father in Florida in December 1993.
On June 14, 1994, the husband filed a pro se petition for dissolution in the Broward County Circuit Court. The petition requested the incorporation of the parties' 1990 agreement in the final judgment and its enforcement. A proper affidavit under the UCCJA was filed, and the wife was served with a summons at her Cozumel, Mexico, address in August of 1994. On September 12, 1994, the Clerk of the Court entered a default against the wife for failure to answer the complaint. Two days later, a final hearing was held before the trial judge who entered a final judgment incorporating the separation agreement. The wife was not present at the hearing.
Also in the court file was a document indicating that the wife had filed some sort of action in Mexico on September 1, 1994. All that is contained in the file is what appears to be a summons which was "served" on the husband at the wife's home in Cozumel. No other documents appear in the file indicating the status of the Mexican proceeding or proper service on the husband.
The wife attacks the trial court's jurisdiction to determine child custody issues because both she and the child are residents of Mexico. The wife relies on section 61.1308(1)(a), Florida Statutes, which provides that the court has jurisdiction if this state is the home state of the child. Claiming that Florida is not the home state of the child, the wife concludes that Florida cannot assert jurisdiction.
Of course, the wife ignores the second section of the statute which states that a court of this state can exercise jurisdiction if:
It is in the best interest of the child that a court of this state assume jurisdiction because:
1. The child and his parents, or the child and at least one contestant, have a significant connection with this state, and
2. There is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal...
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